One of the more common examples where a will is contested, is where someone doesn’t believe that the testator (the person making the will) had the required mental capacity or intended to make a will. For a will to be valid the testator will need to have testamentary capacity and the knowledge and approval to make a will, amongst other things.

So what if – following our late aunt’s death – you discover that she made a will a few weeks before her death when you don’t think that she had capacity?

What is capacity?

The test for testamentary capacity was set out in an old court case called Banks v Goodfellow which dates back to 1870. In order for somebody to have the necessary capacity they must understand:

  1. The nature of the act of making a will and the effects of it;
  2. The extent of the property he is disposing of;
  3. The nature of any claims upon them (i.e. any persons who may be entitled to claim against their estate; and
  4. The testator must not be suffering from any disorder of the mind which “shall poison his affections, pervert his sense of right, or his will in disposing of his property”.

There is a presumption of capacity of the testator if the will is rational and there are no irregularities.

What is the required knowledge and approval?

If a testator is found to have had capacity, there is a rebuttable presumption that they also had the required knowledge and approval to make a will. However, this presumption does not exist in some circumstances, i.e. where the testator is blind, illiterate or if someone else signs the will for them. In these cases the attestation clause (where you sign the will) will have to be suitably drafted.

But I don’t think Aunt Mabel had capacity, she was suffering from dementia

Just because a testator is suffering from dementia, it does not necessarily mean that they lack capacity, however the severity of the condition will need to be considered. Medical evidence can be obtained prior to executing the will to provide evidence of capacity.

If you are worried that a will has been executed when you think that the testator did not have the capacity, you will need to act quickly. We would always recommend that you seek advice as soon as possible and preferably before the grant of probate has been granted as it is possible to enter a caveat at the Land Registry to prevent a grant of probate being taken out by any executors.

If you would like to discuss contesting a will on capacity grounds, please do not hesitate to contact Levi Solicitors Wills, Probate & Trusts solicitors based in Leeds, Bradford, Wakefield, Manchester and London online or on 0113 244 9931.